Rusty at New Covenant has posted a reply to me concerning the 9th amendment. He begins with this statement:

I think part of Ed’s issue is that he really doesn’t understand what I’m saying, or that I’m not communicating it clearly enough… or a little of both. He seems to think that I’m advocating that we have no other rights other than those enumerated in the Constitution.

He’s right, that is what I thought. When he said, “The examples listed of rights we enjoy, but which have not been enumerated in the Constitution, do not reveal valid rights inasmuch as they reveal the rulings of judges”, I read that as arguing that anything specifically enumerated in the constitution is a “valid right”, while unenumerated rights are “invalid rights” that merely reflect the political desires of judges and are therefore illegitimate. Alas, I’m no less confused now. Let’s see if this makes more sense as we analyze his post in more detail.
I had written: “All of these are examples of rights that you and I – and Rusty, I would bet – take for granted, yet they are not listed in the bill of rights. Obviously, the founders could not list every single right that the individual enjoys. You take for granted that you have the right to choose what kind of shoes to wear and that if the legislature passed a bill banning the wearing of sneakers in the US, you would assume that such a law was unconstitutional, right?” Rusty responded:

Well, NO, I wouldn’t consider a law that banned the wearing of sneakers in the US unconstitutional. I would consider it a frivolous law without merit, but that’s a far cry from attempting to tie it to a Constitutional right.

Okay, it appears to me that he is drawing a distinction between a “right” and a “constitutional right”. But what exactly is that distinction? Let’s try a specific example and see how it plays out. Rusty is a staunch advocate of homeschooling. Nowhere in the constitution does it mention that you have a right to homeschool your children. So let’s say that Congress passed a law declaring that all children must attend school and cannot be homeschooled. I am assuming, based on what he has said so far, that he would consider this a “right” but not a “constitutional right”. But what exactly does this mean? Does that mean that it can be overridden by legislatures? By judges? By legislators but not judges? Is there some standard that should be used to determine which rights (not constitutional rights, just “rights”) can be violated and by whom? If so, where does this standard come from? I think I’ll have to wait for Rusty’s answers to those questions for the moment, because I really don’t understand what exactly it is that he is arguing here.

I want to examine one more statement he made though. Rusty said:

So we have a little problem here. If all rights not listed in the Constitution are covered anyway, and if those rights become Constitutional, then when a court declares that a slave owner has the right to own a slave because the slave is not a human but because he / it is the slave owner’s property, what are we to do? The right is Constitutional – right? It must be inalienable – right? The court creates meaning – right? Wrong.

This seems odd to me, and again I may be misunderstanding. He seems to think that if it’s in the constitution it’s “inalienable”, but if it’s not in the constitution, it’s….what? That was the question I asked above and I’ll await that answer. But I think it also should be said that merely because it’s a part of the constitution as originally written, it isn’t necessarily inalienable. Does Rusty think that the founding fathers were infallible? Remember, the original constitution counted blacks as 3/5 of a human being and denied the right to vote to well over half the population. It is an amazing and enduring document, to be sure, but it is also one that we have improved immeasuribly through both the amendment process and judicial review. That doesn’t mean we always get it right, but I think it’s silly to claim that the original intent of the founders is the ultimate arbiter of what is good or bad given some of the horrendous mistakes they made in terms of equality under the law.

I think Rusty also misunderstands Kyle’s argument. He quotes this passage from Kyle’s essay:

While original intent is a Pandora’s Box that is really not worth bothering with, because a) times change, b) the Founders set up a system that allowed for the evolution of legal interpretation through the Ninth and Tenth Amendments, and c) the Founders were such a broad, diverse, and compromising group it’s impossible to determine what their “intent” on any single issue was in any manner even approaching precision, I would venture to file that they would support the right to privacy.

But he seems to think that Kyle is arguing that we cannot know the original intent of the founders at all, and I don’t think that’s what Kyle is arguing (I did inform him of Rusty’s initial reply, so hopefully he’ll weigh in on this issue on his blog or in comments here). I think what Kyle is arguing is not that we can’t know the intent of the framers at all, but that because it is often difficult to know it for the reasons he stated, it’s not the “holy grail” or constitutional law that many conservatives think that it is. And Kyle is right when he points out that the diversity of opinion among the founders often makes it very difficult and requires that we pick and choose among the views. I’ll give one perfect example of why this is true…

In 1798, only 7 years after the ratification of the Bill of Rights, many of the same men (the founding fathers) who framed the first amendment guaranteeing freedom of speech and of the press passed a law called the Sedition Act. This law was pushed through and signed by one of the most prominent founding fathers, John Adams, and it got a majority of the votes in a Congress still led by several other prominent founders. Under this act, publishing anything that “defamed” the government was punishable with fines and imprisonment. And in fact, many of the nation’s most prominent newspaper publishers were imprisoned under this law, including Benjamin Franklin’s grandson. Another of the prominent founding fathers, Thomas Jefferson, ran against Adams in 1800 and when he won he pardoned everyone convicted under the Sedition Act and led the fight to repeal it because he considered in violation of the first amendment. Now tell me, given this situation, which position represents the “original intent” of the framers? It obviously isn’t that simple. So while I disagree with Kyle when he says that original intent is “not worth bothering with” (though I doubt he really meant to make such a sweeping statement), I disagree even more with those who say that the original intent of the founders is the only thing that matters in judicial matters.

Anyway, I’ll await Rusty’s response on the first part of this issue and hope to get some clarification on what exactly he means regarding unenumerated rights.